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HR Director May Be Liable for FMLA Breach

A former Culinary Institute of America (CIA) employee who was fired after taking leave to care for her two sons has triable Family and Medical Leave Act (FMLA) claims against both her employer and the HR director who instigated her discharge, the 2nd U.S. Circuit Court of Appeals ruled. The court held that the “economic reality” test used under the Fair Labor Standards Act (FLSA) to decide if an individual manager may be considered an “employer” also applies under the FMLA.

CIA employed Cathleen Graziadio as a payroll administrator from 2007 until September 2012. On June 6, 2012, Graziadio’s 17-year-old son Vincent was hospitalized for previously undiagnosed Type-1 diabetes. Graziadio promptly informed her supervisor, Maureen Gardella, that she would need to leave work to take care of her son. Graziadio sought to have the leave certified as FMLA leave. She asked the payroll employee who processed FMLA documentation for the necessary FMLA forms. Graziadio returned to work on June 18, 2012, and on or about June 27, 2012, provided the FMLA medical certification for her leave to care for Vincent.

That same day, Graziadio’s 12-year-old son T.J. fractured his leg playing basketball and underwent surgery for the injury. Graziadio notified Gardella that she would need immediate leave to care for T.J. and that she expected to return to work the week of July 9. On July 9, Gardella asked for an update from Graziadio, and Graziadio responded that she would need to work a reduced three-days-a-week schedule until mid- to late August. If her requested schedule was approved, Graziadio could return to work on Thursday, July 12. At that point, Gardella reached out to Shaynan Garrioch, CIA’s director of human resources, concerning Graziadio’s request.

Graziadio called and e-mailed CIA, but Garrioch did not respond until July 17. At that point, Garrioch sent Graziadio a letter stating that Graziadio’s FMLA paperwork did not justify her absences and that she needed to provide updated paperwork to address this deficiency. Garrioch stated that Graziadio was now seeking time off for “another one of [her] children” and would need to submit paperwork for this time off as well. Graziadio responded that she had not received any FMLA forms to be given to T.J.’s doctor and that she intended to contact him to obtain a note for a three-days-a-week schedule and to return on that reduced schedule.

Garrioch responded that the doctor’s note for Vincent stated that there would be doctor’s appointments only every three months, but Graziadio had been absent since early June, with a few exceptions. Garrioch pointed out that CIA had yet to receive any documentation of medical need pertaining to T.J. Graziadio then provided a doctor’s note with respect to T.J.’s care, but CIA claimed it did not justify Graziadio providing full-time medical care. Garrioch stated that she would no longer communicate over e-mail and asked Graziadio to provide three dates/times to discuss the situation in person. Graziadio responded that she was “available whenever.”

Graziadio then offered to return to work full time, but Garrioch insisted that they meet first. Graziadio hired a lawyer to communicate with Garrioch, and Garrioch told the lawyer that Graziadio’s FMLA paperwork was deficient. CIA’s attorney then wrote Graziadio’s attorney an e-mail asking for two complete FMLA certification forms by the next Monday, which was four days later. Graziadio’s attorney claimed to have a medical emergency of his own, resulting in his not receiving the e-mail until after the deadline had expired. A week later, CIA fired Graziadio before her attorney had formulated a response.

Graziadio sued CIA, Garrioch and Gardella for interference with FMLA leave, FMLA retaliation and associational discrimination under the Americans with Disabilities Act (ADA). The defendants moved for summary judgment in the district court to dismiss the claims before trial, which was granted. On appeal, however, the 2nd Circuit reversed the district court’s dismissal of the FMLA counts with respect to CIA and Garrioch.

The 2nd Circuit first considered whether Garrioch qualified as an “employer” under the FMLA. The FMLA provides that an “employer” includes “any person” who “acts, directly or indirectly, in the interest of an employer” toward an employee.

Under the economic reality test, courts consider several “non-exclusive and overlapping” factors. These include if the alleged employer had the power to hire and fire employees; supervised and controlled employee work schedules or conditions of employment; determined the rate and method of payment; and maintained employment records.

A jury applying an economic reality test could find that Garrioch qualified as an FMLA “employer” of Graziadio and therefore could be liable for violating her statutory rights, the court said.

The court also considered whether Graziadio’s evidence supported a claim of pretext in the reason given for her firing, which was that her FMLA paperwork was deficient. Because Garrioch’s communications did not clarify whether the paperwork deficiency pertained exclusively to absences for T.J. or whether it also involved absences for Vincent, the court found that CIA had not been clear in requesting additional documentation. The defendants also had not provided sufficient time for Graziadio to submit documentation for each son under the regulations.

The 2nd Circuit upheld the dismissal of Graziadio’s ADA claim, finding that there was no evidence that CIA considered Vincent’s condition a distraction for her in the workplace.

Professional Pointer: An individual human resource manager may be liable as an FMLA “employer” if she controlled the worker’s employment under an “economic reality” test. The manager’s control over the employee’s FMLA rights is key in deciding if the manager can be considered an “employer.”

Jeffrey L. Rhodes is an attorney with Doumar Martin PLLC in Arlington, Va.